DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF NORTH DAKOTA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, North Dakota ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of North Dakota

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator]
[Hospital / Medical Group Name]
[Street Address]
[City, State ZIP]

[Insurance Carrier Name]
[Claims Department]
[Street Address]
[City, State ZIP]

RE: MEDICAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Patient/Claimant: [Client Full Name]
Date(s) of Negligent Care: [Date or Date Range]
Healthcare Provider(s): [Provider Name(s)]
Facility: [Hospital/Clinic Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the medical malpractice that occurred during [his/her] care and treatment at [Facility Name] by [Healthcare Provider Name(s)]. This letter constitutes formal notice of our client's claim and our demand for settlement.

I. NORTH DAKOTA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations and Statute of Repose

Under N.D. Cent. Code Section 28-01-18(3), the statute of limitations for medical malpractice in North Dakota is two (2) years from the date of the act or omission, or from the date when the patient discovers, or through reasonable diligence should have discovered, the injury and its cause.

Statute of Repose: No action may be commenced more than six (6) years after the date of the act or omission alleged to be the cause of injury, regardless of when the injury was discovered. N.D. Cent. Code Section 28-01-18(3).

Minor Tolling: For minors under the age of eight, the statute of limitations does not begin to run until the child reaches age eight. However, the six-year statute of repose still applies.

Applicable Dates:
- Date of negligent care: [Date]
- Date of discovery: [Date]
- Statute of limitations expires: [Date]
- Statute of repose expires: [Date]

B. Expert Affidavit Requirement

CRITICAL COMPLIANCE: Pursuant to N.D. Cent. Code Section 28-01-46, within three months after service of the defendant's answer, the plaintiff must serve an affidavit of a qualified expert stating that the defendant failed to meet the applicable standard of care and that such failure was a proximate cause of the plaintiff's injury.

Failure to provide the affidavit within the required time may result in dismissal.

Expert Qualifications:
- The expert must be a healthcare provider licensed in the same or substantially similar specialty;
- The expert must be qualified to render opinions regarding the applicable standard of care.

We have retained a qualified medical expert who will provide the required affidavit. Our expert has reviewed the relevant medical records and has concluded that the defendant's care fell below the applicable standard of care.

C. Modified Comparative Fault

North Dakota follows a modified comparative fault standard under N.D. Cent. Code Section 32-03.2-02. A plaintiff may recover damages only if their percentage of fault is less than 50%. If the plaintiff's fault is 50% or greater, recovery is completely barred. If the plaintiff's fault is less than 50%, damages are reduced by the percentage of fault attributable to the plaintiff.

Our client bears no responsibility for the negligent medical care received.

D. Damage Caps

Non-Economic Damages: Under N.D. Cent. Code Section 32-42-02, non-economic damages in medical malpractice cases are capped at $500,000. This cap applies regardless of the number of defendants or theories of recovery.

Economic Damages: There is no cap on economic damages (medical expenses, lost wages, etc.).

Punitive Damages: Punitive damages are not available against healthcare providers for professional negligence unless the conduct constitutes actual malice. N.D. Cent. Code Section 32-03.2-11.

E. Vicarious Liability

North Dakota recognizes hospital vicarious liability under:

1. Respondeat Superior: Hospitals are liable for the negligence of their employees acting within the scope of employment.

2. Apparent Authority: Hospitals may be liable for the acts of independent contractor physicians if the patient reasonably believed the physician was a hospital employee. See Wentz v. Deseth, 221 N.W.2d 101 (N.D. 1974).

3. Corporate Negligence: Hospitals have an independent duty to exercise reasonable care in the selection and supervision of medical staff.

F. Informed Consent

North Dakota recognizes a cause of action for lack of informed consent. Under N.D. Cent. Code Section 32-42-01, a healthcare provider must disclose information that a reasonable healthcare provider would disclose under similar circumstances, and obtain the patient's consent.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to the care and treatment of [Client Name], including but not limited to:

• Complete medical records (paper and electronic)
• All versions of electronic medical records (including audit trails)
• Nursing notes, medication administration records, and flow sheets
• All diagnostic imaging studies and reports
• Laboratory results and pathology reports
• Operative reports and anesthesia records
• Consultation notes
• Informed consent documents
• Incident/occurrence reports
• Peer review and quality assurance records
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files for involved healthcare providers
• Staffing records and schedules

Spoliation Warning: North Dakota courts recognize sanctions for spoliation of evidence, including adverse inference instructions.

III. FACTUAL BACKGROUND

A. Patient History and Presentation

[Client Name], a [age]-year-old [male/female], presented to [Facility/Provider] on [Date] with [chief complaint / reason for visit]:

Relevant Medical History:
- [Relevant past medical history]
- [Relevant surgical history]
- [Current medications]
- [Allergies]

Presenting Symptoms:
- [Symptom 1]
- [Symptom 2]
- [Symptom 3]

B. Chronology of Negligent Care

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Continue with detailed chronology]

C. The Medical Error(s)

[Describe specifically what the healthcare provider(s) did wrong]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under North Dakota law, a healthcare provider must exercise that degree of care, skill, and treatment which a reasonably prudent healthcare provider of the same specialty would provide in similar circumstances. Riedinger v. Colburn, 361 N.W.2d 265 (N.D. 1985).

The applicable standard of care required [Defendant] to:

• [Standard 1]
• [Standard 2]
• [Standard 3]
• [Standard 4]

B. Breaches of the Standard of Care

[Defendant Healthcare Provider] breached the applicable standard of care in the following specific ways:

Breach 1: [Detailed description]
- What the standard required: [Describe]
- What the provider did or failed to do: [Describe]
- How this deviated from the standard: [Describe]

Breach 2: [Detailed description]

Breach 3: [Continue as needed]

C. Res Ipsa Loquitur

North Dakota recognizes the doctrine of res ipsa loquitur in appropriate medical malpractice cases. The doctrine may apply where the injury is of a type that ordinarily does not occur in the absence of negligence. See Dahlen v. Landis, 314 N.W.2d 63 (N.D. 1981).

[If applicable: The circumstances of this case warrant application of res ipsa loquitur because...]

D. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician, who meets the qualifications required under N.D. Cent. Code Section 28-01-46. [Dr./Expert Name] has concluded, to a reasonable degree of medical probability, that:

1. [Defendant Provider] departed from the applicable standard of care;
2. Such departure was a proximate cause of [Client Name]'s injuries;
3. Had appropriate care been rendered, [describe what would have occurred].

V. CAUSATION

A. Proximate Causation

Under North Dakota law, the plaintiff must prove that the defendant's negligence was a proximate cause of the injury. This requires proof that the negligence was a substantial factor in bringing about the harm. Burr v. Kulas, 564 N.W.2d 631 (N.D. 1997).

The defendant's negligence was a proximate cause of our client's injuries because:

• [Causal link 1]
• [Causal link 2]
• [Causal link 3]

B. Loss of Chance Doctrine

North Dakota courts have not definitively adopted or rejected the loss of chance doctrine. Case law suggests recovery is possible where the defendant's negligence was a substantial factor in causing harm, even if the patient had a pre-existing condition. See Krebs v. Bismarck Hosp., 321 N.W.2d 520 (N.D. 1982).

VI. INJURIES AND DAMAGES

A. Physical Injuries

As a direct and proximate result of the defendant's medical negligence, our client has suffered:

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

Current Medical Status:
[Describe client's current condition, ongoing treatment needs, and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses:

C. Lost Earnings and Earning Capacity

Past Lost Wages: $[Amount]
Future Lost Earning Capacity: $[Amount]

D. Non-Economic Damages

Note: Subject to $500,000 statutory cap under N.D. Cent. Code Section 32-42-02

Pain and Suffering:
[Describe the pain caused by the malpractice]

Emotional Distress:
[Describe psychological impact]

Loss of Enjoyment of Life:
[Describe activities and experiences lost]

Disfigurement/Permanent Impairment:
[Describe any permanent effects]

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear departure from the standard of care, the severity of our client's injuries, and the substantial damages, we hereby demand:

$[DEMAND AMOUNT]

[OR: TENDER OF FULL POLICY LIMITS OF $[AMOUNT]]

This demand will remain open for forty-five (45) days from the date of this letter, through and including [Expiration Date].

VIII. INSURANCE INFORMATION REQUEST

We request disclosure of:

• All professional liability insurance policies applicable to this claim
• Policy limits for each applicable policy
• Hospital/institutional liability coverage
• Any self-insured retention amounts
• Excess/umbrella coverage

IX. WRONGFUL DEATH

[If applicable:]

Wrongful Death Act - N.D. Cent. Code Section 32-21-01 et seq.: A wrongful death action may be brought by the personal representative for the benefit of the decedent's surviving spouse, children, or parents. Recoverable damages include:
- Loss of financial support
- Loss of consortium, companionship, and society
- Medical and funeral expenses
- Pecuniary losses

Two-Year Statute of Limitations: Wrongful death actions must be commenced within two years of death. N.D. Cent. Code Section 28-01-18(4).

X. GOVERNMENTAL LIABILITY

[If public hospital or government healthcare provider involved:]

Claims against the State of North Dakota or political subdivisions are governed by N.D. Cent. Code Chapter 32-12.1 (Claims Against the State) and Chapter 32-12.2 (Political Subdivisions).

Notice requirements and damages limitations may apply. Verify compliance with all applicable requirements.

XI. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage verification
• Photographs documenting injuries/condition
• HIPAA authorizations

XII. CONCLUSION

This case involves clear medical negligence causing significant injuries to our client. The departure from the standard of care is supported by qualified expert opinion meeting the requirements of N.D. Cent. Code Section 28-01-46, and the causal connection between the negligence and our client's injuries is direct and well-documented.

We are prepared to file suit in the District Court of North Dakota, [County] County, and to pursue this matter through trial if necessary.

We urge you to give this matter serious attention and to respond promptly.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
State Bar of North Dakota ID No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

NORTH DAKOTA-SPECIFIC PRACTICE NOTES

Expert Affidavit Requirement:
- Must be served within 3 months of defendant's answer
- Expert must be qualified in same or similar specialty
- Failure to provide timely affidavit may result in dismissal
- Extension available for good cause

Comparative Fault:
- 50% bar rule applies
- Plaintiff must be less than 50% at fault to recover
- Damages reduced by percentage of fault

Non-Economic Damages Cap:
- $500,000 cap applies
- No cap on economic damages
- Cap applies regardless of number of defendants

Statute of Repose:
- 6-year absolute bar from date of act
- Important for latent injury cases
- No exceptions for continuing treatment

Mandatory Arbitration:
- N.D. Cent. Code Section 32-29.3 authorizes voluntary binding arbitration
- Check local rules for any mandatory arbitration programs

Collateral Source Rule:
- N.D. Cent. Code Section 32-03.2-06: Evidence of collateral source benefits admissible
- Jury instructed to consider collateral sources

This template must be customized for the specific facts and circumstances of your case. North Dakota medical malpractice law has specific procedural requirements, including the expert affidavit requirement and non-economic damages cap. Always verify current law and consult with experienced North Dakota medical malpractice counsel.